Full opinion text
MURNAGHAN, Circuit Judge: The present appeal stems from a class action suit filed in May, 1976, by plaintiffs Shirley Brown and Dorothy Black against Eekerd Drugs, Inc., charging discrimination in hiring, firing, promotion, job assignment, and geographical assignment at its Mecklenburg County facilities, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981. Brown and Black complained, in addition to their class allegations, that each had been discriminatorily terminated. Although the class initially included rejected applicants for employment, as well as past and present employees, the district court, after our decision in Hill v. Western Electric Co., Inc., 596 F.2d 99 (4th Cir. 1979), cert. denied, 444 U.S. 929, 100 S.Ct. 271, 62 L.Ed.2d 186 (1979), excluded applicants from the class. After trial, Almetta Ivey, a member of the original class who had testified at trial that she was discriminatorily demoted from a supervisory position, was permitted to intervene as a named plaintiff. After further modification, the class ultimately was defined as past and present employees who claimed that the defendant discriminated on the basis of race in connection with promotion or transfer to management and supervisory positions in the defendant’s Mecklenburg facilities. On the merits, the lower court found that the Company discriminated against the plaintiffs and their class. In addition, Brown and Ivey prevailed on their individual claims. Plaintiff Black, however, failed. Accordingly, the court granted reinstatement and backpay to Brown and Ivey and enjoined those promotion and transfer practices found to discriminate against minorities. On appeal, the defendant contends that the original plaintiffs had no “standing” to represent a class concerning claims other than discriminatory discharge; that the district court erroneously permitted class member Ivey to intervene as a named plaintiff a year after trial; and that the individual and class claims of discrimination were not proved. On each issue we affirm the judgment of the district court. Eckerd Drugs, Inc. and its successors (“Eckerd”) have operated several retail stores and a warehouse from corporate offices in Mecklenburg County, North Carolina. The main office employs clerical, professional and management workers. The retail stores are run by a store manager and assistant manager, pharmacist, fountain manager, fountain personnel and sales personnel. The store managers report to district managers who are responsible for various stores. The work force at the warehouse, located in the same facility as the main office, includes stockers, receiving and shipping clerks, checkers, and forklift and truck drivers. The district court found that Eckerd’s promotion and transfer policies, utilized at all facilities, were few: Eckerd maintained no job descriptions for supervisory positions, nor had it posted notices of managerial vacancies until 1978. There were no formal lines of progression into management or supervisory jobs. No written criteria have been utilized to determine the qualifications of a person to fill supervisory vacancies and the management representatives responsible for filling such positions, nearly all of whom are white, have had virtually complete discretion to fill the spots. Employees were evaluated only irregularly arid evaluation has been undertaken from memory without benefit of written criteria. A “word of mouth” system has been employed to notify employees of supervisory vacancies in other facilities. Before 1976, most supervisory personnel were white, despite an employee work force composed of 14% blacks (34% blacks in the retail stores). In September, 1974, plaintiff Shirley Brown was employed as a keypunch operator in the main office. In June, 1975, she left her job after several incidents evidencing racial bias. Plaintiff Dorothy Black, hired to work in a retail store, and subsequently promoted to fountain manager, was fired in 1975. Intervenor Ivey was hired in 1969 to work in the main office. From 1975 until 1977 she supervised the third party receivables department. In June of 1977, she was demoted after training a white supervisor to take her place. I. Eckerd first contends that Brown failed to prove that she was discriminatorily discharged, and that Ivey did not show that she was discriminatorily demoted from a supervisory role. We have carefully examined the factual findings of the district court with respect to Brown and Ivey. Had we been sitting as the trial court, we might well have been inclined to find that Brown and Ivey did not sustain their burden of persuasion. On appeal, however, our function is the very restricted one of determining whether the district court’s determination was clearly erroneous. Where there are conflicts in the testimony, we have kept in mind that the district court is in the best position to evaluate the witnesses’ credibility and resolve the conflicts. Upon examination of the evidence as a whole and of the district court’s findings of fact and law, we are not “left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum, 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948). We therefore affirm the judgments as to the individual claims. The proper approach was outlined by the Supreme Court in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Burdine reaffirmed the doctrine that when a Title VII plaintiff has established a prima facie case, the burden of production, but not persuasion, shifts to the employer, who must show some legitimate, nondiscriminatory reason for the employment decision. Should the employer make that showing, the plaintiff, in order to prevail, has the burden of persuading the trier of fact that the employer’s proffered reason was pretextual. The Court further stated that, once the employer has successfully rebutted the plaintiff’s prima facie case, the evidence previously introduced by the plaintiff can be considered by the trier of fact on the issue of whether the employer’s explanation is pretextual. In fact, “there may be some cases where the plaintiff’s initial evidence, combined with effective cross-examination of the defendant, will suffice to discredit the defendant’s explanation.” Id., at 255 n.10, 101 S.Ct. at 1095 n.10. Having set forth briefly the applicable law, we now discuss in turn the Ivey and Brown claims. A. Ivey Claim Ms. Ivey was first hired by the defendant in 1969 as an accounts payable clerk in its main office. At that time she was the only black employee in a supervisory position. In April, 1976, she was appointed supervisor of a new department, third party receivables. Both the plaintiff’s prima facie case and the defendant’s rebuttal rely on the details of her occupation of that position until she was replaced by a white woman in June, 1977. Ms. Ivey’s performance was neither outstanding nor inadequate. On several occasions, as late as May, 1977, her supervisor, Mr. Dale Whitworth, told her that she was doing a good job, and that he felt she could run the department. He also told her, however, on two occasions that he was not sufficiently satisfied with her performance to give her a pay raise. His specific criticisms were threefold. First, Mr. Whitworth had received complaints that too much noise was coming from the department. Ms. Ivey told him that one employee in particular was responsible for the noise, and that the employee, who was the sister-in-law of Mr. Whit-worth’s secretary, refused to listen to Ms. Ivey. Mr. Whitworth neither fired the employee nor gave Ms. Ivey the authority to fire her. Rather, he said he would talk to her, and told Ms. Ivey that she was responsible for controlling her employees. His lack of effective support contrasts sharply with a similar situation involving a white supervisor of the other plaintiff, Brown, in which management provided strong support for the supervisor. See p. 1273 infra. Second, on one occasion when Ms. Ivey was absent from the office, Mr. Whitworth found in her desk unfinished work, including checks which had not been deposited. When she returned to work, Mr. Whitworth asked her about the unfinished matters, and she responded that her department was overworked and understaffed. During the time Ms. Ivey ran the department there were never more than three employees, as compared with the five or six Mr. Whit-worth promised when he offered her the supervisory position. Finally, Ms. Ivey was unable to prepare the “outstanding balance reports” which she was supposed to file each month. Again, she attributed the failure to lack of staff, and Mr. Whitworth was sufficiently persuaded by her explanation to agree in May, 1977 that he would meet with her in July to review her performance, and that she should prepare an outstanding balance report by then. At the same time he reiterated that her performance was good and that he felt she was capable of running the department. Against that background, two weeks after he expressed confidence in Ms. Ivey, and well before the July, 1977 deadline for an outstanding balance report, Mr. Whitworth informed Ms. Ivey that she was being replaced as supervisor by Marilyn Wilkes, a white woman. Ms. Ivey helped train her replacement to the extent of explaining the department’s workings. Mr. Whitworth gave no explanation for the demotion beyond the general statement that he felt she could not handle the department, contrary to his confidence of two weeks earlier. At trial he testified that Eckerd was planning to adopt a new, more sophisticated system for controlling third party receivables, and that he did not believe Ms. Ivey could handle the new system. From these facts, the district court was justified in concluding that the plaintiff had established a prima facie case of discrimination against Eckerd. When hired, Ms. Ivey was the only black in the main office. As late as 1975, only 7.4% of all employees in the main office were black. She was treated less favorably than a white supervisor when she encountered problems with a subordinate. Finally, she was replaced by a white person despite her superior’s recently expressed confidence in her. The district court’s finding that Ms. Ivey established a prima facie case was correct. The next step in the Burdine analysis is the employer’s rebuttal. Eckerd met its burden to rebut Ms. Ivey’s prima facie case. Eckerd showed that Ms. Ivey was unable to control her department’s noise level, that she left uncompleted work while she was on vacation, and that she failed to provide monthly reports in a timely fashion. Taken together, those deficiencies could comprise legitimate and nondiscriminatory grounds to demote Ms. Ivey. In response to Eckerd’s rebuttal, Ms. Ivey was entitled to show that the proffered ground was not in fact the reason for demotion, but was merely a pretext. She offered no additional evidence to make that showing, but additional evidence is not required. The present case falls within the realm of Burdine’s footnote 10, p. - supra. Taking together all of the evidence which comprised the plaintiff’s prima facie case and the defendant’s rebuttal one might reasonably conclude, even without any additional evidence from the plaintiff, that the deficiencies in Ms. Ivey’s performance were beyond her control, that Mr. Whitworth was aware of that fact, and that he fired her, at least in part, because she was black. Judge McMillan reached that conclusion. Alternatively, one might conclude that the deficiencies were the sole reason for her dismissal. On appeal, we need not — indeed, may not — choose between the two, because the district court’s conclusion was not clearly erroneous and, therefore, must be accepted. The dissent is correct to identify language in the district court opinion which is subject to criticism. The bald statement that Eckerd failed to rebut the prima facie case is difficult to reconcile with the evidence. Furthermore, the court’s expressed requirement that the defendant show Ms. Ivey’s replacement was as qualified as, or more qualified than, Ms. Ivey does not follow Burdine. However, the district court found as a fact that race was one reason for the demotion of Ms. Ivey, and its finding was amply supported by the evidence. We therefore affirm the court’s ruling as to Ms. Ivey. B. Brown Claim Ms. Brown was employed as a keypunch operator in the defendant’s main office until June 3, 1975. Her claim is predicated on the theory of “constructive discharge.” In order to make out a prima facie case of constructive discharge, the plaintiff must show by a preponderance of the evidence that she was forced to quit her employment by intolerable working conditions imposed on her by her employer, who was motivated in such imposition by racial or sex bias. See, e. g., J. P. Stevens & Co. v. NLRB, 461 F.2d 490, 494 (4th Cir. 1972). Here, the prima facie case rests on events which occurred at a conference held on June 3, 1975, as well as several earlier events. First, a white employee who shared Ms. Brown’s work station repeatedly bumped into her chair, in a manner Ms. Brown believed to be deliberate. The bumping was particularly uncomfortable because Ms. Brown had recently given birth to a child by caesarean section. On several occasions, Ms. Brown requested that her supervisor, Penny Hart, change her work station, but Ms. Hart refused, although there were vacant work stations at the time. She said that she expected to make a complete reassignment of work stations in the department, and would reassign Ms. Brown at that time. Ms. Brown, believing her work situation intolerable, then spoke to Mel Harvey, who she believed had authority to make the change immediately. Mr. Harvey referred her to Mr. Straughn, Ms. Hart’s supervisor, and Mr. Straughn refused to make a change. He stated that such matters were within Ms. Hart’s discretion. Ms. Brown responded that she would not “put out a hundred percent.” When Mr. Straughn told her to “put out a hundred percent or else,” Ms. Brown replied that she would do her best, but didn’t think it possible to function at full efficiency under such circumstances. Her work station was finally changed three weeks after her initial request. Taken alone, this incident could be seen as an employer’s reasonable response to an employee’s insubordination. The district court, however, found that the work station unpleasantness was one of many incidents which, when taken together, made Ms. Brown’s working conditions intolerable. It is certainly plausible on the district judge’s part to conclude that, when a white employee repeatedly bumps a black employee, who has recently undergone surgery, and management fails to take immediate action to remedy the situation, the employer is acting to make the black employee’s conditions of employment intolerable because of her race. Second, Ms. Brown testified that on June 2, 1975, she observed Mr. Straughn and others watching her work, and that, when she passed within' hearing distance she heard Mr. Straughn use the term “nigger.” Eckerd emphasizes that on no other occasion did anyone use racially objectionable language in Ms. Brown’s presence. However, this incident, like the first, is probative of the working conditions imposed on Ms. Brown, and the racial bias of her superior. It is relevant to, although not dispositive of, the issue of constructive discharge, and the district court was entitled to take it into consideration. Third, Ms. Brown testified that, when she returned from her maternity leave, she was told that no changes in the computer format had been made, but in fact there had been substantial changes, which rendered it impossible for her to work effectively. Ms. Brown testified that she requested assistance from Ms. Hart, and that her request was refused. Ms. Hart denied having received any such request. The district court, which had the benefit of observing the witnesses’ demeanor as they testified, found that such a request was made, and that finding comprises the third component of the prima facie case. Again we might have found differently than the trial judge, but the evidence was there to support his conclusion, which must be accepted since it was not clearly erroneous. Finally, the events which occurred during the meeting on June 3, 1975 between Ms. Brown and her supervisors compose the final evidence in the prima facie case. Present at the meeting were Ms. Brown, Ms. Hart, Mr. Straughn, and a personnel representative, Glenda Hanner. Ms. Brown was questioned about her high rate of absenteeism, which she attributed to her difficult pregnancy, and her child’s illnesses. She was asked to improve her attendance, and, she testified, to promise not to be absent at all in the future. She promised to try to improve her attendance in the future. More important than the substance of the meeting was its tone. Ms. Hanner acted as an “interpreter” for Ms. Brown. Ms. Brown testified, “They would ask me something and I would give the answer to it and Glenda would rephrase my answer using bigger terminology, you know, I guess so they could understand better.” When Ms. Hanner took the side of Mr. Straughn and Ms. Hart on some matters, racial accusations became more open. Ms. Brown said Ms. Hanner claimed she didn’t know there was any black-white dispute. Mr. Straughn addressed Ms. Brown as “girl,” while pointing his finger in her face, and Ms. Hart called her a “fool.” Ms. Brown then asked that a black employee be brought into the meeting, but her request was denied, so she refused to talk further. Ms. Hanner suggested that Ms. Brown might be happier working elsewhere, and, Ms. Brown testified, Ms. Hart told her she was fired. She then went out to the company parking lot, and Mr. Straughn there told her to leave the premises. From this evidence it is clear that Ms. Brown established a prima facie case of constructive discharge. She was treated rudely by a white employee, and not supported by management. It appeared she was called a “nigger” by the highest official with whom she had contact. Her supervisor refused to assist her when the computer format was changed during her maternity leave. Finally, during a conference with supervisors, she was dealt with in a condescending and abusive manner which the district judge could properly find to be suggestive of racial animosity. Her sentences were “translated” by a white person, she was addressed as “girl,” and she was called a “fool,” before being ordered off the premises. The district court found, with substantial support, that the employer made her working conditions intolerable, that it did so in order to force her to quit, and that its motivation was, at least in part, racial. Again Eckerd offered enough evidence to rebut the prima facie case. The refusal to reassign Ms. Brown to a new station may have been mere compliance with a sensible departmental practice. Her supervisor may not have refused to assist her, if the supervisor’s testimony is believed. The condescending behavior at the meeting may, as Eckerd claims, have been Ms. Brown’s irrational perception due to her anger. In sum, Ms. Brown may have been properly discharged because of her insubordination at the meeting. However, even granting that Eckerd offered sufficient proof of facts to demonstrate a legitimate reason for Ms. Brown’s constructive discharge, it was the district court’s role to evaluate all of the evidence in order to determine whether the reason advanced was a pretext. Here, again, the plaintiff was not required, under Burdine, to introduce new evidence to show that the employer’s legitimate reason was a pretext. Looking at all the evidence, one might reasonably conclude that the employer deliberately harassed Ms. Brown until it succeeded in prevailing on her to quit, and that the motivation was racial bias. That was the conclusion the district court reached. A rejection of the finding would constitute an impermissible crossing of the boundary line between what an appellate court may do and what falls within the trial court’s ambit. We must affirm the district court, because its view was not clearly erroneous. II. Eckerd also contends that Brown, Black, and Ivey were not “appropriate” representatives of the class under Hill v. Western Electric, supra, 596 F.2d 99, because the named representatives suffered injury “different” than that of members of the class. Since the class in this case ultimately in-eluded just employees at the defendant’s main office, warehouse, and several of its retail stores who complained of failure to promote or transfer into management and supervisory jobs, we consider Eckerd’s argument only in relation to the final class definition. Moreover, since we hold that Brown and Black were at all times appropriate representatives of the indicated class, we have no occasion to address the issue of whether Ivey’s post-trial intervention cured any asserted certification defect based on the contention that Brown and Black lacked “standing” under Rule 23(a) to represent the class. In Hill, we held, in the circumstances of that case, that an employee, who had been hired, could not represent a class that included persons who were denied employment altogether. However, Hill did not preclude an employee who suffers some particularized employment discrimination grievance from representing other employees who present factually differing claims that, nevertheless, proceed on the same legal theory of race discrimination. Barnett v. W. T. Grant Co., 518 F.2d 543 (4th Cir. 1975); cf. East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977). As stated by the court in Donaldson v. Pillsbury Co., 554 F.2d 825, 831 (8th Cir. 1977), cert. denied, 434 U.S. 856, 98 S.Ct. 177, 54 L.Ed.2d 128 (1977), “[w]hen the claim arises out of the same legal or remedial theory, the presence of factual variations is normally not' sufficient to preclude class action treatment.” See also Gibson v. Local 40, Supercargoes and Checkers of the International Longshoremen’s and Warehousemen’s Union, 543 F.2d 1259, 1264 (9th Cir. 1976); Russell v. American Tobacco Co., 528 F.2d 357, 365 (4th Cir. 1975), cert. denied, 425 U.S. 935, 96 S.Ct. 1666, 48 L.Ed.2d 176 (1976). Crockett v. Green, 534 F.2d 715 (7th Cir. 1976). Where an employee presents a particularized claim of racial injury, she may represent a class of other employees in bringing a general challenge to workplace discrimination. Payne v. Travenol Laboratories, Inc., 565 F.2d 895, 900 (5th Cir. 1978), cert. denied, 439 U.S. 835, 99 S.Ct. 118, 58 L.Ed.2d 131 (1978); Donaldson v. Pillsbury Co., supra, 554 F.2d at 830-31; Senter v. General Motors Corp., 532 F.2d 511, 524 (6th Cir. 1976), cert. denied, 429 U.S. 870, 97 5. Ct. 182, 50 L.Ed.2d 150 (1976). The nature of employment discrimination injury is such that all minority employees suffer similar injury when unlawful practices governing the conditions of their workplace either perpetuate a discriminatory work environment or subject them to a substantial risk that they will be denied employment benefits in the future on account of their race. See Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 208-09, 93 S.Ct. 364, 366, 34 L.Ed.2d 415 (1972) (two tenants, one black and one white, are “persons aggrieved” under Title VIII of the Civil Rights Act of 1968 when their landlord discriminates against nonwhites in the rental of apartments); Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 111-15, 99 S.Ct. 1601, 1614-16, 60 L.Ed.2d 66 (1979) (deprivation of benefits of interracial associations constitutes sufficient injury to accord plaintiffs’ constitutional standing); Coles v. Havens Realty Corp., 633 F.2d 384, 388-90 (4th Cir. 1980), cert. granted, 451 U.S. 905, 101 S.Ct. 1972, 68 L.Ed.2d 293 (1981) (named representatives of a class challenging racially discriminatory “steering” practices of the defendant realty companies suffered injury to their interest in “living in integrated communities free from discriminatory housing practices”); Rogers v. Equal Employment Opp. Comm’n, 454 F.2d 234, 237-39 (5th Cir. 1971), cert. denied, 406 U.S. 957, 92 S.Ct. 2058, 32 L.Ed.2d 343 (1972) (Goldberg, J.) (employee may challenge discriminatory work environment created by segregation of patients); Waters v. Heublein, Inc., 547 F.2d 466, 469-70 (9th Cir. 1976), cert. denied, 433 U.S. 915, 97 S.Ct. 2988, 53 L.Ed.2d 1100 (1977) (white employee has standing to sue employer who discriminates against minorities since she has statutory right to work environment free of racial prejudice). All employees of a firm that allegedly discriminates in promotions have an identical interest in obtaining declaratory and injunctive relief against the perpetuation of the challenged practices. Therefore, quite apart from any possibility of sharing in classwide damages as to practices to which the named representative alleges no particularized individual claim, employee representatives share interests of a kind with other employees in redressing racially discriminatory employment practices that either pollute their working environment or else threaten them with harm in the foreseeable future. Additionally, we note that class members — including named representatives— who have not applied for a promotion may nevertheless be eligible to share in any monetary relief awarded the class provided each can demonstrate that she would have applied for promotion but for the defendant’s discriminatory promotion practices. See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 362-68, 97 S.Ct. 1843, 1868-71, 52 L.Ed.2d 396 (1977). In the typical Title VII bifurcated trial, which splits the liability stage (and, consequently, all class certification decisions) from the remedial stage, a putative representative’s possible eligibility for sharing in any class relief will not, in the normal course of affairs, be known until after his or her eligibility to litigate class claims has been determined. That the Supreme Court anticipates the possibility of obtaining such relief in the remedial stage underscores our conclusion that Brown and Black have, indeed, been personally injured by the practice they challenge. Under these standards, Brown and Black are entirely appropriate representatives. At the time of certification, each could show that, in addition to her individual claim of discriminatory dismissal, she labored under the allegedly discriminatory promotion practices of the defendant. Each of the named plaintiffs, the district court found, worked in a system in which virtually none of the supervisors were black or minority. Indeed, the one black supervisor in the main office, Almetta Ivey, had been demoted from her supervisory position. As employees allegedly injured by the Company’s maintenance of a hierarchically segregated work environment supervised by a largely white managerial staff, therefore, Brown and Black were proper parties under Hill and Barnett to represent an employee class challenging employment practices that generally affected minority employees adversely. Moreover, if successful on their individual claims and reinstated, each named plaintiff, at the time of certification, could anticipate that she would once again be subjected to Eckerd’s discriminatory promotion practices. Eckerd’s failure to post notices of or provide job descriptions for supervisory vacancies, its reliance on word-of-mouth notice of vacancies, its lack of regularized objective means of employee evaluation, the absence of objective criteria governing promotions into supervisory positions, and its complete reliance on managerial discretion in making promotion decisions are classic means by which minorities are locked into static positions. Brown v. Gaston County Dyeing Mach. Co., 457 F.2d 1377, 1382-83 (4th Cir. 1972), cert. denied, 409 U.S. 982, 93 S.Ct. 319, 34 L.Ed.2d 246 (1972); Barnett v. W. T. Grant Co., supra, 518 F.2d at 549-50; Rock v. Norfolk & Western Ry., 473 F.2d 1344 (4th Cir. 1973), cert. denied, 412 U.S. 933, 93 S.Ct. 2754, 37 L.Ed.2d 161 (1973); Rowe v. General Motors Corp., 457 F.2d 348, 358-59 (5th Cir. 1972). At the time of certification, therefore, Brown and Black could show that, in addition to their particularized claims of discriminatory dismissal, each was injured by discriminatory promotion practices. See Rodriguez, supra, 431 U.S. at 403, 97 S.Ct. at 1896. Therefore, Brown and Black were appropriate representatives of an employee class at all relevant times during the litigation. See generally, Note, Antidiscrimination Class Actions Under the Federal Rules of Civil Procedure: The Transformation of Rule 23(b)(2), 88 Yale L.J. 868 (1979); Note, The Proper Scope of Representation in Title VII Class Actions: A Comment on East Texas Motor Freight System, Inc. v. Rodriguez, 13 Harv.C.R.-C.L.L.Rev. 175 (1978). III. Eckerd maintains that the district court erred when it allowed class member Almetta Ivey to intervene after trial as a named plaintiff. The contention is without merit. The district court permitted Ms. Ivey to intervene both as of right, Fed.R.Civ.P. 24(a), and pursuant to trial court discretion, Fed.R.Civ.P. 24(b). Since we perceive no abuse of discretion under Rule 24(b), we do not decide whether Ivey, as a class member, had a right to intervene. It is enough that the district court had a discretionary power to permit her intervention. Rule 24(b) provides that a district court may allow intervention by “anyone” when the “applicant’s claim or defense and the main action have a question of law or fact in common.” Here, in her complaint, Ms. Ivey contended that she was demoted from a supervisory position on account of her race. Certainly, since she was already a class member, her claim presented issues of law and fact in common with those of the class. See generally 7A Wright and Miller, Federal Prac. & Proc. §§ 1911,1916 (1972 & 1981 Supp.). In addition, Fed.R.Civ.P. 23(d)(2) and (3) expressly anticipate that class members may wish to intervene as named parties. The defendant has not suggested that it was prejudiced by Ivey’s intervention as a named plaintiff a year after the trial. Indeed, since her claim had been presented at the trial, it would be difficult for the defendant to suggest that her metamorphosis into a named plaintiff worked to its detriment. See Muskelly v. Warner & Swasey Co., 653 F.2d 112 (4th Cir. 1981) (class member permitted to intervene after trial as named representative). Therefore, we conclude that the decision to allow Ivey to intervene was proper, and that her actual intervention in the litigation after trial was timely. See United Airlines, Inc. v. McDonald, 432 U.S. 385, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977) (allowing class member to intervene after judgment for purpose of appealing denial of class certification); Wheeler v. American Home Products Corporation, supra, 563 F.2d 1233; McDonald v. E. J. Lavino Co., 430 F.2d 1065 (5th Cir. 1970) (intervention after judgment allowed). IV. Having carefully reviewed the remainder of defendant’s contentions, including the sufficiency of proof on the class claims, we find no error. AFFIRMED. . No appeal was taken from the denial of Black’s individual claim nor from the denial of individual relief to several other class members who presented claims at trial. Nor do the plaintiffs contest the various modifications of the class. . Before 1973 only one black (Dorothy Black) had been employed in a managerial capacity outside the warehouse. Except for Almetta Ivey, no black at the time of judgment had ever held a supervisory position in the main office. Of Eckerd’s 97 supervisory positions in the main office and stores in 1975, 3 (3.09%) were occupied by black persons. Warehouse employees fared significantly better. In 1975, of the 158 workers in the warehouse, 43 (27.6%) were black. Of what were apparently 13 warehouse management or supervisory personnel that year, 3 (23%) were black. . We emphasize the necessity to evaluate the plaintiff’s prima facie case as a whole. To evaluate each piece of evidence seriatim, the practice followed in the dissent, would impose an impossible and improper burden on the plaintiff. . The defendant does not contend that Brown, who worked in the main office, and Black, who worked in a retail store, are, simply on geographical grounds, ineligible to represent warehouse employees complaining of exclusion from supervising positions. See Hill v. Western Electric, supra, 596 F.2d at 102-03. But see Patterson v. American Tobacco Co., 535 F.2d 257 (4th Cir. 1976), cert. denied, 429 U.S. 920, 97 S.Ct. 314, 50 L.Ed.2d 286 (1976) (two plants of same employer treated as single facility for purpose of class action representation). We note, in any event, that the relevant labor market for supervisory positions in all three operations was comparable. . That Brown and Black are former employees does not affect their capacity to represent current employees. See Jenkins v. Blue Cross Mutual Hosp. Ins., Inc., 538 F.2d 164, 169 (7th Cir. 1976) (en banc), cert. denied, 429 U.S. 986, 97 S.Ct. 506, 50 L.Ed.2d 598 (1976); Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239, 247 (3d Cir. 1975), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975); Rich v. Martin Marietta Corp., 522 F.2d 333, 340 (10th Cir. 1975). Cf. United States Parole Comm’n v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980) (former prisoner no longer subject to Parole Commission guidelines has standing to appeal denial of class certification). . Patterson v. General Motors Corp., 631 F.2d 476 (7th Cir. 1980), cert. denied, 451 U.S. 914, 101 S.Ct. 1988, 68 L.Ed.2d 304 (1981), does not alter the Seventh Circuit’s support for broad Rule 23 standing where an employee raises complaints about general employment practices that affect other employees — past, present or potential — as well as himself. See, e.q., Crockett, supra, 534 F.2d 715. In Patterson, the complaint alleged facts that “relate[d] solely to plaintiff’s personal grievances,” and the appeals court held that where such a plaintiff “has simply asserted no facts relating to other members of the purported class,” the district court’s denial of class certification was not an abuse of discretion. 631 F.2d at 480-81 (emphasis in original). . Although plaintiff Black failed at trial to prove her individual claim, her loss does not moot or destroy the class claims. As the Supreme Court has stated: Obviously, a different case would be presented if the District Court had certified a class and only later had it appeared that the named plaintiffs were not class members or were otherwise inappropriate class representatives. In such a case, the class claims would have already been tried, and, provided the initial certification was proper and decertification not appropriate, the claims of the class members would not need to be mooted or destroyed because subsequent events or the proof at trial had undermined the named plaintiffs’ individual claims. See, e. g., Franks v. Bowman Transportation Co., 424 U.S. 747, 752-757, 96 S.Ct. 1251, 1258-60, 47 L.Ed.2d 444 (1976); Moss v. Lane Co., 471 F.2d 853, 855-856 (CA4). Where no class has been certified, however, and the class claims remain to be tried, the decision whether the named plaintiffs should represent a class is appropriately made on the full record, including the facts developed at the trial of the plaintiffs’ individual claims. At that point, as the Court of Appeals recognized in this case, “there [are] involved none of the imponderables that make the [class-action] decision so difficult early in litigation.” 505 F.2d at 51. See also Cox v. Babcock & Wilcox Co., 471 F.2d 13, 15-16 (CA4). East Texas Motor Freight v. Rodriguez, 431 U.S. 395, 406 n.12, 97 S.Ct. 1891, 1898 n.12, 52 L.Ed.2d 453 (1977). In addition, the Supreme Court has recently held that the expiration of a named plaintiffs individual claim does not moot or destroy putative class claims, and that such a plaintiff has standing to appeal a denial of class certification. United States Parole Comm’n v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980). See Satterwhite v. City of Greenville, 578 F.2d 987 (5th Cir. 1978) (en banc) (holding that named plaintiff who lost her individual Title VII claim on the merits before class certification could not represent the putative class), vacated and remanded, 445 U.S. 940, 100 S.Ct. 1334, 63 L.Ed.2d 773 (1980), on remand, 634 F.2d 231 (5th Cir. 1981) (en banc). . See note 2, supra. . Fed.R.Civ.P. 24(a): Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties. . Fed.R.Civ.P. 24(b): Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant’s claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. . Fed.R.Civ.P. 23(d): Orders in Conduct of Actions. In the conduct of actions to which this rule applies, the court may make appropriate orders: ... (2) requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action; (3) imposing conditions on the representative parties or on intervenors; .... . Nor can Eckerd complain that Ivey failed to exhaust Equal Employment Opportunity Commission (EEOC) administrative procedures. Eckerd received notice of EEOC charges filed by Brown and Black prior to the commencement of the litigation. Brown’s and Black’s charges included complaints about the defendant’s practices concerning hiring, assignment, promotion, and geographical assignment, among other employment practices. Their charges encompassed Ivey’s individual complaint. It is not necessary that each class member, named plaintiff, or intervenor file charges with the EEOC. See Wheeler v. American Home Products Corporation, 563 F.2d 1233, 1238-40 (5th Cir. 1977) (“If back pay may properly be awarded in a class action to members of a class [who] do not meet the jurisdictional requisites, there seems no reason, in an action not a class action, to deny back pay to intervenors who do not meet the jurisdictional requisites”); Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 498 (5th Cir. 1968). In any event, Ms. Ivey filed an EEOC charge on June 23, 1977, and received a right to sue letter on April 29, 1979; her petition to intervene was granted on July 26, 1979.
DONALD RUSSELL, Circuit Judge, dissenting: , I dissent. I first address the individual claims of the class members. In so doing, it is necessary only to consider the charges made by Ms. Brown and Ms. Ivey, since all other claims by individual members were dismissed on their merits and there is no appeal from such dismissal. I The flaw in the disposition of both the Brown and the Ivey charges is the failure of the District Court to apply the Burdine burden of proof rule in disposing of these claims. Under Burdine, the plaintiff has “[t]he burden of establishing a prima facie case,” which the Court declared was not an “onerous” burden. If the plaintiff establishes such prima facie case, the burden shifts to the employer “to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, non-discriminatory reason. The defendant need not persuade the court that it was actually motivated by the proffered reasons. See Sweeney, supra [439 U.S. 24] at 25 [99 S.Ct. 295, at 296, 58 L.Ed.2d 216], It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.” Specifically, this burden imposed at this point on the employer is not “to introduce evidence, which, in the absence of any pretext, would persuade the trier of fact that the employment action was lawful” (Emphasis the Court’s), but only to “articulate lawful reasons for the action.” More important, for purposes of this case, the employer is not required “to prove by objective evidence that the person hired or promoted was more qualified than the plaintiff.” (Emphasis added) In fact, one of the actual grounds for reversal in Burdine was the error of the Court of Appeals in imposing on the employer the burden of proving by objective evidence that those hired or promoted were better qualified than the plaintiff. When the employer has met this burden of articulating (not persuading) a lawful reason for his act, “the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity.” (Emphasis added) To prevail, then, the plaintiff must “demonstrate that the proffered reason was not the true reason for the employment decision,” but was discriminatory, and here the burden of persuasion rests on the plaintiff. In neither the Brown nor the Ivey case did the District Court follow this plainly marked procedure as mandated by Burdine. The decision below in these cases should be reversed or, at least, remanded for further action in the light of the standards declared in Burdine, which actually were not new but were simply a clearer reaffirmation of the prior decisions in Sweeney, Waters, and even McDonnell Douglas, as we recognized in Ambush v. Montgomery Cty. Government, Etc., 620 F.2d 1048, 1052 (4th Cir. 1980) and, as several District Courts in this Circuit have recognized, Day v. Patapsco & Back Rivers R. Co., 504 F.Supp. 1301, 1311 (D.Md.1981); Cussler v. University of Maryland, 430 F.Supp. 602, 605 (D.Md.1977). In so reversing or remanding, we would be following the well reasoned opinion of Judge Friendly in Ste. Marie v. Eastern R. Ass’n., 650 F.2d 395 (2d Cir. 1981). In Ste. Marie the charge was sex discrimination “in appointments to technical and managerial positions.” The District Court, as here, found in favor of the plaintiff and her class. In reversing, the Court said: “The overarching reason why the decision must be reversed is that the judge, having concluded, perhaps wrongly, that plaintiff had established a prima facie case, proceeded on the basis of a clearly improper standard as to the burden thereby placed on the defendant. He stated, 458 F.Supp. at 1165, that the establishment of a prima facie case of sex discrimination ‘the burden shifted to the defendant to rebut plaintiff’s case, and its failure to do so compels the conclusion that its policies and practices violate the Act.’ “This was error. It has been clear ever since McDonnell Douglas, supra, 411 U.S. at 802, 93 S.Ct. at 1824, that the burden that is shifted to the defendant by plaintiff’s making out a prima facie case of disparate treatment — a task described in Burdine as ‘not onerous’, 450 U.S. at 253, 101 S.Ct. at 1093 — is not a burden of persuading the trier of a business necessity to employ or promote a person belonging to the majority. The shifted burden is simply ‘to articulate some legitimate, nondiscriminatory reason for the [minority] employee’s rejection.’ 411 U.S. at 802, 93 S.Ct. at 1824. This follows necessarily from the language and purpose of Title VII. The employer is not required to hire or promote a minority employee; rather he is forbidden to refuse to hire or promote such an employee because of race or sex. Hence he sufficiently rebuts a prima facie case by pointing to a business reason for his employment decision. By doing this he adequately negates, for the time being, the force of a plaintiff’s initial showing that a qualified minority employee was denied employment or promotion which was given a majority employee instead. The plaintiff then has the burden ‘to show that [the] stated reason . . . was in fact pretext,’ 411 U.S. at 804, 93 S.Ct. at 1825, or, as later phrased, id. at 805, 93 S.Ct. at 1826, ‘that the presumptively valid reasons’ for failure to hire or promote ‘were in fact a coverup for a racially [here sexually] discriminatory decision.’ Justice Powell’s recent opinion in Burdine, supra, simply elaborates in a helpful fashion on the theme sufficiently sounded eight years ago in McDonnell Douglas from which the Court has never deviated. The district court’s conclusion that defendants had followed a pattern and practice of disparate treatment must therefore fall as based on an erroneous allocation of the burden of proof.” II Turning first to the Ivey claim: At the outset, it is to be noted that the district court’s decision sustaining Ms. Ivey’s racial discrimination claim is fatally flawed by two critical errors of law. That the district court, in analyzing the facts as a basis for its final conclusions, utilized these erroneous legal standards cannot be disputed. These legal errors — both vital in the factual analysis of the claim — are plain and obvious in the opinion itself. Indeed, the majority concedes that such decision is contrary to the recent decision of the Supreme Court in Burdine in two vital particulars. Nor could it hardly have done otherwise. The first of such errors, which related to the burden of proof in this discriminatory treatment case, is, in the words of the majority, “difficult to reconcile with the evidence.” The majority might more accurately have said that it was impossible “to reconcile” the district court’s ruling on the burden of proof with the law, as declared in Burdine, for such is the plain fact as the majority recognizes by making no effort to “reconcile” the decision of the district court with the evidence. The second error imposed improperly on the defendant a “requirement that the defendant show that Ms. Ivey’s replacement was as qualified as, or more qualified than, Ms. Ivey.” The majority candidly acknowledges that the district court, in so holding, did “not follow Burdine.” The majority, however, blandly dismisses these admitted violations of the rules declared in Burdine by declaring, applying the clearly erroneous rule (“. .. our function is the very restricted one of determining whether the district court’s determination was clearly erroneous”), simply that “the district court found as a fact that race was one reason for the demotion of Ms. Ivey, and its finding was amply supported by the record.” Such a “brush-off” of the flagrant violations of Burdine by the district court in reaching its decision disregards the fact that the very finding and conclusions it affirms (/. e., “that race was one reason for the demotion”) was arrived at by the district court only as a result of a factual analysis of Ms. Ivey’s claim made on the basis of the district court’s erroneous legal rules on burden of proof and on the necessity of the defendant’s establishing that Ms. Ivey’s replacement was better qualified than Ms. Ivey. These two rulings, both concededly erroneous, lie at the very heart of the district court’s finding “that race was one reason” for Ms. Ivey’s demotion. Critical legal errors — errors such as the two here, which can be decisive in the result reached by the court, are not to be dismissed as the majority has done by a routine incantation of the clearly erroneous rule. Since the finding that Ms. Ivey’s demotion was racially motivated as arrived at by an application of what it must be admitted were two critical errors of law, the majority errs in assuming that the proper standard of review is, the clearly erroneous rule. This was made quite clear in our decision in Owen v. Commercial Union Fire Ins. Co., 211 F.2d 488, 489 (4th Cir. 1954) where we said: “The trial judge held that the burden of proof rested upon the plaintiff ‘to prove, by the weight of the credible evidence, that he has not been guilty of wilfully concealing or misrepresenting any material fact or circumstance’. This was clearly erroneous. The burden of proof rested upon the defendant to establish the fraud alleged, (citing cases) And we think that the error is of such a nature that we should vacate the judgment and remand the case for further hearing. The rule that an appellate court will not disturb findings of fact made by the trial judge unless they are clearly erroneous does not apply if he has committed an error of law which has manifestly influenced or controlled his findings of fact, such as mistake as to the burden of proof.” We restated this same principle in Piedmont Minerals Company v. United States, 429 F.2d 560, 562, n. 4 (4th Cir. 1970): “To be sure, in making this determination of fact the district court must apply relevant legal principles, and a factual determination made in disregard of the applicable principles of law, or made through gross overemphasis on one relevant principle to the exclusion of others, will be reversed because of the application of an improper legal standard. This is not the case here.” In so ruling, we were following the rule adopted universally in federal courts, and applied as well in Title VII cases as in other types of cases. Johnson v. Uncle Ben’s, Inc., 628 F.2d 419, 422 (5th Cir. 1980); United States v. Texas Ed. Agcy., Etc., 564 F.2d 162, reh. denied, 579 F.2d 910 (5th Cir.), cert. denied, 443 U.S. 915, 99 S.Ct. 3106, 61 L.Ed.2d 879 (1979); Parson v. Kaiser Aluminum & Chemical Corp., 575 F.2d 1374, 1382 (5th Cir.), cert. denied, 441 U.S. 968, 99 S.Ct. 2417, 60 L.Ed.2d 1073 (1979); Rowe v. General Motors Corporation, 457 F.2d 348, 356, n. 15 (5th Cir. 1972); Ammerman v. Miller, 488 F.2d 1285, 1300 (D.C.Cir. 1973). Moreover, it was the rule adopted and followed by the Supreme Court itself in Bur-dine, see 450 U.S. at 259 n.12, 101 S.Ct. at 1097 n.12. If this rule is applied, there is no escape from a reversal of the decision of the District Court. The factual record of the Ivey claim clearly sustains the foregoing conclusions. Ms. Ivey, the claimant, was initially employed by the defendant in 1969 in its main office. In December, 1975, when a new department (third party receivables) was created, she, a black, was made supervisor of that department. She was relieved as supervisor in June, 1977 (without any reduction in salary) and replaced by Marilyn Wilkes, a white. That may well have been sufficient, under the liberal rule for establishing a prima facie case as formulated in Burdine, to make out a prima facie case of racial discrimination. See Lindsey v. Miss. Research & Development Center, 652 F.2d 488, 491 (5th Cir. 1981). For purposes of this discussion, I shall accept that conclusion. But, under the Burdine standard, that only shifted the burden to the defendant to “articulate lawful reasons for the action;” it certainly did not impose on the defendant any burden of persuasion or of rebutting the prima facie case. And the defendant did precisely meet its burden of articulating “lawful reasons” for its demotion of Ms. Ivey and that in overwhelming detail. In so doing, the defendant began by establishing that almost from the outset, the department was not understaffed racially. Of its four employees, two were black and two white. The two black employees at the beginning were the claimant Ivey and Theresa Hasty. When Theresa Hasty quit to return to school in Texas, Morris Abraham, also black was transferred into the department. Neither did the defendant seek to discriminate against blacks in the selection of the manager of the department. Ms. Ivey, a black, was chosen by Whitworth, the officer under whom the department operated, as the new department’s supervisor. She retained that position from December, 1975 to June, 1977. The function of the new department was the establishment of a control system over what the defendant described as “third party receivables”, i.e., claims for payment for prescriptions not from the person presenting the prescription but from “third parties”, such as an insurance company. The operation of the new department was phased in gradually over a period of some months until it covered all the stores in the chain. One of the specific and important duties of the supervisor of the department was the preparation of an “outstanding balance report that she was supposed to present to [her superior] monthly.” This report was not an elaborate or complicated report; to prepare it merely required the collection of “each one of the pages for each one of the stores at the end of the month and combinpng them into] the totals.” According to the defendant’s undisputed testimony, the plaintiff Ivey, though she was the supervisor charged with the responsibility of preparing these monthly reports, did not prepare or file a single monthly report in the months between her appointment as a supervisor in December, 1975 and her demotion in June, 1977. She was repeatedly requested during this time to furnish such report. Her reply was always that she was “working on the report.” Whitworth, her superior, repeatedly and with unusual patience, extended time to her for preparing the reports. From sometime in September, 1976, Ms. Ivey was on sick leave for ten weeks. In this period, the defendant offered testimony that it began to receive reports “about certain things that had not been done” by Ms. Ivey. Whitworth checked through Ms. Ivey’s desk. He found “various things such as checks that were not deposited, dating back some four to five months; . . . rejected claims that had not been reprocessed, had not been sent back to the stores; . . . inquiries from managers that had not been answered . . . several instances where checks had been deposited in total without any breakdown as to what stores . . . could not support the breakdown on the spread sheet . . . used to deposit checks.” When Ms. Ivey returned to work, Whitworth testified that he brought all of these delinquencies to her attention. Ms. Ivey offered various excuses. Her primary excuse was overwork and inadequate staff. How this prevented her from preparing the monthly reports, depositing checks, answering inquiries from store managers, and the other shortcomings in her performance was not detailed by Ms. Ivey. In line with its employment policy, Ms. Ivey’s superiors reviewed with her at least two times before her demotion her job performance. On each occasion, she was told by her superior that her performance was not adequate and did not qualify for an increase in pay. At this review her superiors indicated to Ms. Ivey the shortcomings in her performance. Ms. Ivey did not contest the shortcomings specified by her superiors in her performance. She sought again to excuse them because of inadequate staff and overwork. The last of these reviews was in April before her demotion. One of the items of discussion in both of these reviews was the continuing one relating to her failure to prepare her monthly reports. At her final April review, Ms. Ivey said she would have the reports by July next. During the period when Ms. Ivey was supervisor Whitworth said he had repeated complaints from other departments about the noise and loud talking in Ms. Ivey’s department. He had called this to Ms. Ivey’s attention. Ms. Ivey generally blamed the noise on a white employee, Cindy Newsome. Whitworth told her she was the boss and she should control her employees. Further, he pointed out to her that she made as much noise as others in the department and she should set an example. Although Ms. Ivey seemed to blame her difficulties on Cindy Newsome, she never recommended either the discharge or disciplining of Newsome. In the meantime, the defendant had merged with another company engaged in a similar business but on a larger scale. The other company had a more sophisticated system for controlling “third party receivables” than had the initial employer and the merged company determined to shift over to the more sophisticated system operated by the other company. Whitworth, Ms. Ivey’s superior, testified that, since Ms. Ivey had shown an inability to handle the simpler system used by the old company, it was obvious, Whitworth reasoned, she would not be able to handle the more sophisticated one. He accordingly called Ms. Ivey in, explained the situation to her, told her he was going to transfer Ms. Wilkes from the accounts receivable department, where she was the second in command, to this new department as the supervisor. He offered Ms. Ivey the opportunity to transfer without any diminution in salary to another department, if the change embarrassed her. She declined, saying “that she and Marilyn [Wilkes] work well together.” I submit that this evidence offered by the defendant, so much of it undisputed by Ms. Ivey, met the test established in Burdine for articulating a legitimate reason for its action, and thereby shifted the burden to the plaintiff to prove by the preponderance of the evidence that “the proffered reason was not the true reason for the employment decision but pretextual” and that “she [had] been the victim of intentional discrimination.” Ms. Ivey assuredly did not thereafter satisfy her burden of persuasion that the articulated reason for Ivey’s replacement was pretextual by any proof of a general practice of discrimination in promotion or demotions on the part of defendant, or by any evidence of discrimination in the treatment of black supervisors as contrasted with white supervisors, or by any record of harassment of the plaintiff Ivey. Thus, in its initial Memorandum of Decision, the District Court stated: “The court does not find that Ivey’s demotion represents any general pattern, practice or policy regarding demotions. There is no evidence that Ivey or any other class member who held a supervisory position was given more onerous duties or was held to a higher standard of performance than whites in comparable supervisory positions. The Court would like to hear further from the parties on whether Almetta Ivey is, on these facts, entitled to any relief, and if so, what relief ought to be afforded.” (Italics added) What apparently the district court rested its finding on in this case was, first, that the defendant had not borne its burden of rebutting the claimant’s prima facie case in that it had not established that Ms. Ivey’s replacement was better qualified than Ms. Ivey. This proof of comparative qualification was essential, according to the district court, if the defendant were to sustain what the district court erroneously conceived to be the defendant’s burden of persuasion. In its initial Memorandum of Decision, the district court made this perfectly clear. It said: “Although the sys